Law Times

Law Times • January 14, 2019 Page 13 www.lawtimesnews.com Supreme Court of Canada Criminal Law OFFENCES AGAINST THE PERSON AND REPUTATION Driving/care or control with exces- sive alcohol [over 80] Not enough to argue that procedural defect in issue was likely to compromise reliability Period during which accused is being observed. Accused was arrested and brought to police station where breathalyzer was prepared by officer B. Accused was observed by officer C while he was talking to his lawyer over phone. Results of breathalyzer tests were over the legal limit and accused was charged with operating motor vehicle with blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood. At trial, officer C was not called to testify and officer B, who was called as witness, was unable to state whether officer C had actu- ally observed accused through- out whole procedure. Further, it was showed that officer C had observed accused through window. Trial judge held that procedure had not been fol- lowed properly and acquitted accused and Crown appealed. Superior Court judge set aside acquittal and ordered new trial and accused appealed. Major- ity of Court of Appeal set aside Superior Court judge's judg- ment and restored the verdict of acquittal and Crown appealed. Appeal allowed. Where accused is charged with operating mo- tor vehicle with blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood, presump- tions set out in s. 258(1)(c) of Criminal Code apply. To rebut those presumptions, accused must adduce evidence tending to show that malfunctioning or improper operation of approved instrument casts doubt on reli- ability of the results. In the in- stant case, evidence adduced by accused was purely speculative. It was not enough to argue that procedural defect in issue was likely to compromise reliability. Moreover, evidence showed that both test results were consistent. Therefore, verdict of acquittal should be set aside and new trial should be ordered. R. c. Cyr-Langlois (2018), 2018 CarswellQue 10901, 2018 CarswellQue 10902, 2018 SCC 54, 2018 CSC 54, Wagner C.J.C., Abella J., Moldaver J., Karakat- sanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reasons in full (2018), 2018 CarswellQue 8942, 2018 Car- swellQue 8943, Wagner C.J.C., Abella J., Karakatsanis J., Gas- con J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.). SENTENCING PROCEDURE AND PRINCIPLES Types of sentence Surcharge created de facto indefinite criminal sanction for some offenders Several impecunious offend- ers appealed imposition of vic- tim surcharge. One accused had no high school education, had never held steady job, and had no income for almost two years. Most serious crimes for which accused was sentenced were committed at time when he was homeless and unemployed. Sentencing judge reduced vic- tim surcharge from $4,000.00 to $1,400.00, being of opinion that $1,400.00 did not constitute cruel and unusual punishment. Accused's appeal from imposi- tion of victim surcharge was dis- missed. Court of appeal found that various provisions gave im- pecunious offenders time to pay and limited state's collection op- tions. Several accuseds appealed with Supreme Court of Canada. Appeal allowed. Mandatory victim surcharge constituted cruel and unusual punishment, as defined by s. 12 of Charter. Imposition and enforcement of surcharge on poorest individu- als resulted in cruel and unusual punishment. Surcharge was considered to be punitive sanc- tion as it f lowed directly and automatically from conviction. Victim surcharge also had sig- nificant impact on the liberty, security, equality, and dignity of those subject to its applica- tion. All accuseds that appealed imposition of victim surcharge lived in serious poverty and had precarious housing situations. For certain effects of mandatory surcharge create grossly dispro- portionate punishment. Victim surcharge forced people to en- dure possibility of indetermi- nate sanction. Judges imposing victim surcharge could exercise no discretion in event that of- fender was unable to pay. This created deeply disproportionate effects for those who were most impoverished. Offenders who were poor, homeless, and ad- dicted would live with threat of incarceration, and it was reason- ably likely that they would spend at least some time in detention as result of surcharge. Ultimate ef- fect of surcharge was that it cre- ated de facto indefinite criminal sanction for some offenders. In- ability of offenders to repay their full debt to society and to apply for reintegration and forgiveness hit very foundations of crimi- nal justice system.. Surcharge also undermined Parliament's intention to ameliorate serious problem of overrepresentation of Indigenous peoples in prison. Victim surcharge could not be justified under s. 1 of Charter. R. v. Boudreault (2018), 2018 CarswellOnt 20975, 2018 Car- swellOnt 20976, 2018 SCC 58, 2018 CSC 58, Wagner C.J.C., Abella J., Moldaver J., Kara- katsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2016), 2016 CarswellQue 11341, 2016 Car- swellQue 11705, 2016 QCCA 1907, Duval Hesler J.C.Q., Schrager J.C.A., and Mainville J.C.A. (C.A. Que.). (S.C.C.); re- versed (2017), 2017 CarswellOnt 10029, 2017 CarswellOnt 10030, 2017 ONCA 552, Paul Rouleau J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.). Federal Court of Appeal Environmental Law STATUTORY PROTECTION OF ENVIRONMENT Approvals, licences and orders First Nations must be able to engage with pipeline proponents confidentially in accordance with agreement Case management judge in pending judicial review pro- ceedings ordered that admissi- bility of impugned evidence be determined by panel hearing the consolidated challenges to deci- sion of Governor in Council. Case management judge issued order protecting confidentiality of information pending decision of panel. Impugned evidence was struck. TM conceded that information was confidential. This was consistent with text of written agreement between par- ties. Agreement also established that information was imparted in circumstances where obli- gation of confidence existed. Disclosure of Confidential In- formation without permission of UN Band was detrimental to UN Band. First Nations must be able to engage with pipeline proponents confidentially in accordance with terms of confi- dentiality agreement the parties mutually conclude. Tsleil-Waututh Nation v. Canada (Attorney General) (2018), 2018 CarswellNat 7096, 2018 CarswellNat 7097, 2018 FCA 155, 2018 CAF 155, Eleanor R. Dawson J.A., Yves de Mon- tigny J.A., and Judith Woods J.A. (F.C.A.); additional reasons (2018), 2018 CarswellNat 4685, 2018 Car- swellNat 4686, 2018 FCA 153, 2018 CAF 153, Eleanor R. Daw- son J.A., Yves de Montigny J.A., and Judith Woods J.A. (F.C.A.). Intellectual Property PATENTS Actions for infringement There was not sufficient evidence to conclude product was objectively commercially viable substitute Plaintiff, pharmaceutical com- pany, had received four patents for antibiotic cefaclor in 1980's, which were set to expire between October 1999 and July 2000. In 1996, defendant, pharmaceuti- cal company, was advised that it would face infringement action by plaintiff if it entered market with generic version of cefaclor. After defendant filed its first no- tice of compliance for antibiotic in 1997, it began selling its vari- ous capsules of cefaclor on Ca- nadian market. In 1998, defen- dant entered into new contract with company to have cefaclor be made through new process thereby designing around plain- tiff 's patent by creating cefaclor 2. Plaintiff brought successful action against defendant alleg- ing that defendant infringed its patents for manufacture of anti- biotic cefaclor. Trial judge found that defendant was not entitled to benefit of "non-infringing al- 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 Containing contact information for more than 66,000 judges and legal professionals, more than 27,500 law offices, government departments, and law related offices, canadianlawlist.com attracts more than 325,000 page views a month and 110,000 unique visitors! Book your enhanced listing today! Contact Colleen Austin at 416.649.9327 or colleen.austin@tr.com www.canadianlawlist.com Enhance your presence on Canada's largest legal directory AVAILABLE ONLINE AND IN PRINT Untitled-2 1 2018-09-05 10:17 AM

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