Law Times

Page 14 January 28, 2013 Law Times • CASELAW allowed applicant's appeal and sent case back to tribunal. Service Canada's appeal allowed. Tribunal acknowledged applicant's argument that advertising position constituted abuse of authority but concluded that regardless of whether position new or old, Service Canada entitled to advertise. Tribunal addressed gravamen of complaint and resolved it by interpreting and applying Act. Question whether position new or reclassification not relevant and had no effect on reasonableness of tribunal's decision. Tribunal held that given broad discretion accorded to employers under s. 33 of Act, applicant not entitled to any particular process. Not unreasonable for tribunal to reject applicant's position that he was owed non-advertised process. Guidelines he relied upon made under old Act and nolonger applied. Tribunal made no finding as to what employer's "principal justification" may have been and majority of Federal Court of Appeal effectively undertook own assessment of record by attributing to employer "principal justification", i.e. newness of PM-06 position. Not appropriate for Federal Court of Appeal to intervene to this extent. Tribunal did not act unreasonably by failing to give applicant opportunity to show there was "no rational basis" for employer's position; any reasonable reading of record indicated that whether position new or reclassified could be subject of reasonable disagreement by reasonable people. Kane v. Canada (Attorney General) (Nov. 23, 2012, S.C.C., McLachlin C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34147) Decision at 328 D.L.R. (4th) 193, 199 A.C.W.S. (3d) 1180 was reversed. 221 A.C.W.S. (3d) 349. Pensions SURPLUS Superannuation Accounts are accounting records, not funded and segregated pools of assets Pension plans for federal public service employees (Plan members), established by statute, were defined benefit plans administered by government. By March 1999, superannuation accounts, which record payments into and out of plans, reflected actuarial surpluses of over $30 billion. Government began to "amortize" surpluses to reduce annual budget deficit and net pension liabilities. Bill C-78 made significant changes to Superannution Acts. Since April 1, 2000, employee and government contributions in respect of current service made to pension funds that replaced superannuation accounts. Benefits for pensionable service prior to April 1, 2000 paid out of appropriate superannuation account but benefits for service thereafter paid out of appropriate pension fund. Bill C-78 required minister to debit from superannuation accounts amounts in excess of specified actuarial surplus ceilings, resulting in government debiting over $28 billion from superannua- tion accounts. Various unions and associations commenced actions seeking relief requiring government to return $28 billion to plans. Claims dismissed. Plan members' interests limited to defined benefits to which they are entitled. Superannuation Accounts are accounting records, not funded and segregated pools of assets nor are they "trust-like". Theory that government borrowed from accounts inconsistent with legislation and properly rejected by courts below. Superannuation scheme reflects "internal borrowing" only in sense that its design eliminated need for external borrowing to finance government's pension obligations. Plan members do not have proprietary interest in contributions; contributions are "cost" paid by employees for future legal entitlement to statutorily defined benefits. Superannuation Acts provide only legal entitlement to statutorily defined pension benefits, not equitable interest in amounts credited to superannuation accounts. Nor did government have fiduciary duty to plan members. Government did not undertake to act in best interests of plan members with respect to actuarial surplus and owed duty to act in best interests of society as whole. Plan members not vulnerable to government's exercise of discretion in accounting treatment of surpluses as effect of amortization was to disclose more accurately Canada's actual pension obligations, not plan members' statutory entitlements under plans. Bill C-78 clear that compensation not intended to be given to plan members for amounts debited. Professional Institute of the Public Service of Canada v. Canada (Attorney General) (Dec. 19, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33968) Decision at 193 A.C.W.S. (3d) 438 was affirmed. 221 A.C.W.S. (3d) 470. ONTARIO CRIMINAL CASES Appeal GROUNDS Trial judge erred in ruling daughter's proposed testimony not relevant Accused appealed his conviction for criminal harassment. Accused submitted that trial judge was in error not to re-open evidence and allow proposed evidence from complainant's daughter that went to issue of whether complainant felt threatened. Charges arose amidst highly charged domestic split up during which complainant had been convicted of assaulting accused. Appeal allowed, new trial ordered. Trial judge erred in her ruling that daughter's proposed testimony was not relevant to issue whether accused's conduct caused complainant to fear for her safety. Error arose due to trial judge's failure to fully consider important evidence described by complainant. Trial judge also erred in requiring accused to demonstrate due diligence as factor of test used to govern court's exercise of discretion to reopen evidence by finding that accused should have attempted to speak to daughter after being charged because her evidence would have been foreseeable as being relevant. Trial judge was required to consider whether accused could have had honest belief that prohibition on communication was implied from terms of release. Daughter's evidence as to her state of fear was highly relevant as complainant testified that daughter was target of accused's conduct, and in particular, shared experience of accused's harassment. R. v. Orlik (Sep. 6, 2012, Ont. S.C.J., Annis J., File No. 0716570) 103 W.C.B. (2d) 919. Charter of Rights ENFORCEMENT OF RIGHTS Searches neither reasonable nor authorized by law Application by Crown for ruling regarding voluntariness of accused's videotaped statement. Application by accused for stay of charge or for exclusion of certain evidence because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was charged with sexual assault. When he was arrested on evening of April 19, 2010, he was handcuffed, searched incident to arrest and he was informed of his right to counsel. Accused stated that he understood and he wished to speak to lawyer and to call legal aid. He was given opportunity to speak to duty counsel and he spoke to him for seven minutes. Officer in charge of investigation seized accused's clothing and obtained penile swab in order to determine whether complainant's DNA was on accused's clothes or penis. At that time officer was not trained sexual assault investigator and he did not consult with more experienced officers. Officer did not obtain search warrant because he thought DNA evidence would be compromised if he waited for warrant and he thought he could seize clothing and obtain swab as part of search incidental to arrest. To obtain clothing and swab accused had to remove his clothing in presence of two male officers. Crown's application allowed and accused's application allowed in part. Accused was subjected to strip search. That search and penile swab violated s. 8 of Charter. Such searches were neither reasonable nor authorized by law as they were not searches incidental to arrest. Searches were not authorized by law because they were not conducted in reasonable manner and without properly articulated grounds. Sections 7 and 12 of Charter were also violated. Accused's right to counsel was www.lawtimesnews.com breached because he should have been re-informed of his right to counsel prior to strip search and swab. Despite breaches accused was not entitled to stay because police conduct would not shock public. Penile swab evidence was inadmissible due to Charter breaches. Blood sample that was taken from accused in February 2012 was admissible because there was insufficient causal or temporal connection between taking of sample and breach of accused's rights that occurred on April 19. Videotaped statement was given voluntarily and Crown could cross-examine on it if accused chose to testify. There was no police trickery. R. v. Pun (Sep. 20, 2012, Ont. S.C.J., Gilmore J., File No. 1003774G) 103 W.C.B. (2d) 983. FUNDAMENTAL JUSTICE No reason for police to have thought they had to preserve photographs Application by accused, who was convicted of first-degree murder of eight-year old boy who was her boyfriend's nephew, for declaratory relief under Canadian Charter of Rights and Freedoms. Proposed declaration was that it was principle of fundamental justice under s. 7 of Charter that upon conviction for indictable offence punishable by life imprisonment all pertinent evidence that should have been disclosed under Stinchcombe decision should be preserved for lifetime of offender. Accused was convicted in 1984 and it was upheld in 1986. Supreme Court of Canada denied leave in 1987. She retained Innocence Project in 1997 and it commenced this application in 2010. Accused sought remedy under s. 24(1) of Charter. She was only entitled to remedy if she could establish that her rights under Charter were infringed or denied. Accused claimed that her rights under s. 7 were violated when Province of Ontario lost or destroyed certain autopsy photographs that showed size and location of bruise on victim's scalp. Pictures were first referred to by pathologist who conducted autopsy on victim at trial in 1984. Accused's trial counsel said nothing about pictures. He was not surprised by their existence and he did not ask to see them. From that time there was 24-year silence about pictures until 2008 when accused's counsel ask to see them. Application dismissed. Charter was not violated. Court assumed that pictures had been disclosed before trial and there was no need to see them. Pictures were not significant. Assuming that there was some sort of duty on Crown to preserve Stinchcombe material after appellate rights were exhausted, that duty was not breached in this case. Whatever obligation to preserve evidence survived exhaustion of appellate remedies there was no violation of Charter where loss or destruction was satisfactorily explained and accused suffered no prejudice. Regarding adequate explanation, due to dura- tion of silence and fact that appeal remedies were exhausted in 1987 there was no reason for police to have thought they had to preserve photographs, especially since no retention policy existed at that time. Accused failed to show that she was prejudiced for pictures would not assist her in demonstrating her innocence. Chaudhary v. Ontario (Attorney General) (Sep. 18, 2012, Ont. S.C.J., Dambrot J., File No. CV10-00401343-0000) 103 W.C.B. (2d) 951. Courts ABUSE OF PROCESS Failure to proceed with fourth trial would not place community in danger Accused, charged with first degree murder for which he had been tried three times, applied for stay of proceedings to prevent being tried for fourth time. Accused was not arrested until 17 years after murder after his DNA was matched to DNA from semen found inside victim and on jeans that she was wearing at time of her death. Accused was originally convicted but new trial was ordered when it was determined trial judge erred in allowing statement into evidence taken in breach of accused's right to counsel. At end of second trial jury was discharged as result of being unable to reach unanimous verdict. Accused spent period of 10 years and eight months before obtaining bail, and due to breach which he was acquitted of, spent another three months in jail, and rest of time, approximately three years, on strict house arrest conditions. Stay of proceedings granted. Court had twice ruled proposed Crown evidence tracing 9-1-1 call to accused's place of employment inadmissible and would likely do so third time. It is only very rare case where putting accused in jeopardy with respect to serious charge for fourth time would not constitute breach of s. 7 of Charter sufficient to warrant stay of proceedings. It was likely that evidence at fourth trial would be substantially same as evidence at second and third trials, with potential to be weaker as witnesses died or their memories deteriorated. Failure to proceed with fourth trial would not place community in danger and court found accused was not risk to reoffend. R. v. Badgerow (Sep. 6, 2012, Ont. S.C.J., Taylor J., File No. CR-00-09) 103 W.C.B. (2d) 972. Sentence SEXUAL OFFENCES Court sent clear and stern message to all teachers who may be tempted to engage in sexual relations with students Accused teacher was sentenced to 14 months plus three years' probation after pleading guilty to sexual exploitation of his 16-year-old student. Accused engaged with multiple sexual acts with complainant including oral sex, mutual masturbation and attempted intercourse.

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