Law Times

Page 13 Law Times • November 4, 2013 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. FEDERAL COURT OF APPEAL Aboriginal Peoples SELF-GOVERNMENT Distinction impeded full political membership for many elders and reserve residents Pursuant to Indian Act (Can.) ("IA"), Minister revoked order that Chief and Council of Kahkewistahaw First Nation ("KFN") be selected through elections in accordance with IA, thereby allowing KFN to adopt community election code. Kahkewistahaw Election Act ("KEA") provides that candidate for chief or councillor must have minimum Grade 12 education or equivalent. Appellant evaluated at Grade 10 level and his nomination as candidate for chief not certified. Respondent elected chief by acclamation and other respondents declared elected as councillors. Appellant's application for judicial review, seeking declaration that impugned provisions of Act invalid, that respondents be removed from office and that new elections be held, dismissed but appellant's appeal allowed. Charter applies to council of KFN and election process through which council members elected. Fact that Minister took measures to allow KFN to adopt community election code did not result in repudiation of Charter scrutiny. As citizens of Canada, aboriginal peoples entitled to protections and benefits of rights and freedoms set out in Canadian Charter of Rights and Freedoms. Impugned provisions of KEA violated principle of equity under s. 15(1) of Charter and reiterated in KFN's community election code. Evidence established that even if education excluded as analogous ground of discrimination, educa- tion requirement at issue created distinction resulting in discrimination on enumerated ground of age and analogous ground of aboriginality-residence. Impugned provisions disenfranchised large segment of electors of KFN from elected public office and disproportionate number of elders and on-reserve residents affected. Distinction impeded full political membership in community for many elders and reserve residents, perpetuating prejudice against these persons and attacking their sense of self-worth. It also perpetuated stereotyping that did not correspond to actual abilities. Infringement not justified under s. 1. While encouragement of educational achievement by aboriginal peoples was pressing and substantial objective, no rational connection between objective and disenfranchisement of large part of community from elected public office. Impugned provisions violated s. 15(1) of Charter. No evidence any candidate for councillor rejected on basis of impugned provisions so new elections for councillor not required. Since appellant precluded from running for chief on discriminatory ground, new elections for that position must be held. Taypotat v. Taypotat (Aug. 13, 2013, F.C.A., Pierre Blais C.J., Robert M. Mainville J., and D.G. Near J., File No. A-427-12) Decision at 221 A.C.W.S. (3d) 2 was reversed. 230 A.C.W.S. (3d) 623. Evidence PRIVILEGE Solicitor-client privilege does not apply to accounting records Federal Court Judge found that appellant lawyer did not comply with requirement for information provided to him by respondent Minister of National Revenue pursuant to enforcement proceedings under Income Tax These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. Act (Can.). Canada Revenue Agency sought complete statement of lawyer's income and expenses, current accounts receivable listing and copies of bank statements. Lawyer raised shield of solicitor-client privilege to protect basic information regarding accounts receivable, claiming clients' names and amounts owing were protected, but argument not accepted. Lawyer's appeal allowed in part. Solicitor-client privilege is fundamental tenet of legal system, but not absolute. Privilege belongs to client and can only be asserted or waived by client. Privilege does not attach to communications in which legal advice neither sought nor offered or where communication not intended to be confidential. Solicitor-client privilege protects client names only where identity of client constitutes foundation of retainer or essence of consultation; client names not per se privileged. Privilege distinct from, and narrower than, duty of confidentiality. Solicitor-client privilege does not apply to accounting records and supporting vouchers and cheques. Moreover, lawyer failed to establish privilege on balance of probabilities. Judge's finding that there was nothing to suggest any client's name required protection of privilege fully supported by evidence. Minister seeking purely factual information consisting of names of clients and amounts of money owed by clients individually. Judge did not err in finding this information not subject to solicitor-client privilege. Nor was there interference with any rights in relation to privilege contrary to Canadian Charter of Rights and Freedoms. While client names not always privileged, possible some clients' names protected by solicitor-client privilege. Clients should have opportunity to assert privilege and lawyer should have oppor- tunity to lay proper evidentiary foundation on their behalf. Judge should have fashioned remedy addressing critical issue of privilege before making order. Matter returned to federal court for new hearing on question of accounts receivable listing. Thompson v. Minister of National Revenue (Aug. 29, 2013, F.C.A., J.D. Denis Pelletier J.A., Johanne Trudel J.A., and Robert M. Mainville J.A., File No. A-515-12) 230 A.C.W.S. (3d) 736. SUPREME COURT OF CANADA Evidence HEARSAY Cross-examination of co-accused would not be adequate procedural safeguard Accused charged with first degree murder. Separately charged co-accused pleaded guilty to second degree murder. Co-accused admitted agreed statement of facts ("ASF") implicating accused as killer. At accused's trial co-accused recanted ASF and denied accused was responsible. Crown sought to introduce ASF for its truth. Co-accused asserted solicitor-client privilege when questioned about conversations with his lawyer about plea and ASF. Trial judge found that Crown had not established threshold reliability for ASF and that privilege would hinder full cross-examination of co-accused. Trial judge ordered directed verdict of acquittal. Court of Appeal set aside acquittal and ordered new trial. Appeal allowed and acquittal restored. Trial judge did not err in declining to admit ASF. Circumstances of ASF enhanced reliability of co-accused's admissions of responsibility but not of his statements blaming ac- cused. Cross-examination of co-accused at trial would not be adequate procedural safeguard to establish threshold reliability. R. v. Youvarajah (Jul. 25, 2013, S.C.C., McLachlin C.J.C., Fish J., Abella J., Rothstein J., Cromwell J., Karakatsanis J., and Wagner J., File No. 34732) Decision at 98 W.C.B. (2d) 212 was reversed. 108 W.C.B. (2d) 653. FEDERAL COURT Aboriginal Peoples LAND CLAIMS Applicant did not have recognizable interest in lands Chief and council passed motion that three lots were reserved for community BNF initiatives and two lots were available for housing development. Chief and council passed second motion to approve realignment of entrance to road. Applicant claimed to have interest in lots road passed over. Applicant claimed construction of homes and community centre would affect ancestral burial mounds that applicant cared for. Applicant argued decisions were made without satisfying requirements for procedural fairness because decisions were made without notice or regard to applicant's interests. Application for judicial review was dismissed. Applicant did not have right or interest in property. Applicant did not have recognizable interest in lands over and above applicant's interest as band member. Applicant did not establish applicant was adversely affected by development. Decisions did not impinge on applicant's residence at lighthouse. Applicant had actual notice of council meetings where two motions were passed. Applicant was personally aware of plan of survey and opportunity to make views known. 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