Law Times

Law Times • June 23, 2014 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Sentence PRINCIPLES Precluding credit for unavailability of remission would be incompatible with parity principle Accused pleading guilty to manslaughter in shaking death of infant daughter. Accused spending 10 months in pretrial custody. Crown at sentencing acknowledging accused likely candidate for early parole. Trial judge giving 1.5:1 credit due solely to unavailability of remis- sion and parole eligibility while on remand. Court of Appeal up- holding trial judge's conclusion that s. 719(3) of Criminal Code permits enhanced credit solely for loss of opportunity of early release. Crown appeal dismissed. Nothing in language of s. 719(3) limits scope of "circumstances" that may justify enhanced credit for pretrial custody. Precluding credit for unavailability of remis- sion would be incompatible with parity principle. R. v. Summers (Apr. 11, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Crom- well J., Karakatsanis J., and Wag- ner J., File No. 35339) Decision at 105 W.C.B. (2d) 789 was af- firmed. 112 W.C.B. (2d) 393. Sexual Offences SEXUAL ASSAULT Accused's dishonesty was sufficient to vitiate consent Accused charged with aggra- vated sexual assault. Accused se- cretly punched holes in condoms he and complainant used dur- ing sex. Complainant became pregnant and had abortion with serious medical complications. Trial judge found that complain- ant consented only to protected sex and so convicted accused of sexual assault. Court of Appeal upheld accused's conviction. Appeal dismissed. Complain- ant consented to sexual contact in issue. Consent was vitiated by accused's fraud. Accused's dis- honestly removing effective birth control was sufficiently serious deprivation to vitiate consent. R. v. Hutchinson (Mar. 7, 2014, S.C.C., McLachlin C.J.C., Abel- la J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35176) Deci- sion at 105 W.C.B. (2d) 806 was affirmed. 112 W.C.B. (2d) 404. FEDERAL COURT Administrative Law NATURAL JUSTICE Minimal duty of procedural fairness required applicant to know case to meet Applicant was offered position of employment with Finan- cial Transactions and Reports Analysis Centre of Canada (FIN- TRAC) that was conditional on her obtaining secret security clearance before commencing position and top secret security clearance after commencing em- ployment. Applicant obtained secret security clearance and began employment. FINTRAC refused to issue top secret secu- rity clearance to applicant and revoked her secret security clear- ance, her reliability status and her appointment to position with FINTRAC. Applicant was not given notice of concerns leading to denial of security status and was not provided opportunity to address concerns. Three letters were sent to applicant advising her of redress mechanisms. Ap- plicant was provided with letters from Director of FINTRAC and redacted report from Canadian Security Intelligence Service. Ap- plicant sought judicial review. Application allowed. Decisions to deny top secret status and to revoke secret and reliability sta- tus were quashed and sent back to director for redetermination. Decisions denying and revoking security status were administra- tive decisions. Applicant was owed minimal duty of proce- dural fairness. Director did not meet duty of fairness. Minimal duty of procedural fairness re- quired applicant to know case to meet and to be given opportunity to respond before final decision was made. Applicant should have known nature of security con- cerns, but she was not provided with any opportunity to respond. Decision to revoke applicant's ap- pointment as employee of FIN- TRAC was governed by contract law and no duty of procedural fairness applied to such decision. Koulatchenko v. Financial Trans- actions and Reports Analysis Cen- tre of Canada (Mar. 3, 2014, F.C., Catherine M. Kane J., File No. T-2252-12) 238 A.C.W.S. (3d) 280. Admiralty ARREST Plaintiff not entitled to arrest sister ship once it exercised right to arrest offending ship Vessel hit marine terminal trestle owned by plaintiff. Berth was rendered unusable pending re- pairs causing loss to plaintiff esti- mated to be in excess of $60 mil- lion. Plaintiff brought action and obtained warrant for arrest of vessel. Parties negotiated release of vessel. Original letter of under- standing (LOU) was for security of $26 million against plaintiff 's claim. Plaintiff asserted there was common mistake that amount of available security was capped at value of vessel and there was mistake that right to arrest sis- ter ships was weak or they were of little or no value. Plaintiff as- serted it was subject to economic duress in agreeing to accept LOU in order to minimize disruption to business and mitigate finan- cial losses. Plaintiff sought deter- mination of whether there was binding agreement under which plaintiff agreed to waive right to arrest sister ships of defendant ship. Plaintiff sought determina- tion of whether plaintiff could arrest offending vessel and sister ship. Motion dismissed. There was binding agreement to which plaintiff waived right to arrest sis- ter ships. Plaintiff could not arrest offending ship and sister ship. In bringing motion with respect to multiple arrests, plaintiffs them- selves implicitly acknowledged that issue was not clear cut since they were seeking determination of that question by court. There was no mistake and there was no basis to set aside agreement on ground of mistake. Plaintiff 's ar- gument about economic duress was ill-founded. Defendant was entitled to take position that ves- sel would not be moved until se- curity was posted and usual con- sequence of arrest was that ship would not be moved in absence of court order or consent. There was no coercion of will but there was bargaining. Plaintiff was not entitled to arrest sister ship to ves- sel once it exercised right to arrest offending ship. Section 43(8), of Federal Courts Act (Can.), did not give right to multiple arrests. Inherent ambiguity in "any" or "de tout" in s. 43(8) of Act was resolved by reference to use of singular "ship" in English version and "navire" in French version. There was no evidence that Par- liament intended to provide right to multiple arrests in domestic domain when Convention made it clear that only one ship could be arrested. Westshore Terminals Limited Partnership v. Leo Ocean S.A. (Feb. 7, 2014, F.C., E. Heneghan J., File No. T-2259-12) 238 A.C.W.S. (3d) 281. Civil Procedure PLEADINGS To recognize private duty of care to beekeeping industry would conflict with legislative scheme Importation of live honeybees from United States was prohib- ited. Restrictions were based on risk assessment conducted by Canadian Food and Drug In- spection Agency. Minister's au- thority to issue permit arose un- der Health of Animals Act (Can.) (HAA), and Health of Animals Regulations (Can.). Prohibition under Honeybee Importation Prohibition Regulations, 2004 (Can.), expired, but defendant continued to enforce complete prohibition on import of honey- bee packages from United States, but continued to grant permits for importation of United States queens. Plaintiffs argued that by prohibiting and denying them opportunity to obtain permits for importation of United States honeybee packages defendant breached duty of care and acted without lawful authority. Plain- tiff sought damages. Defen- dant brought motion for order striking out statement of claim without leave to amend. Motion granted. Potential tort liability for Federal Crown pursuant to Crown Liability and Proceed- ings Act (Can.), depended on tort committed by servant of Crown, but plaintiffs' claim was framed as one of direct liability against Crown and it does not disclose reasonable cause of action. There were no court decisions that de- termined existence of private law duty of care in circumstances similar to present claim. Objec- tive of legislative scheme was to protect animal health and pub- lic safety. Minister's duty was to people of Canada as whole, not to individual industry participants like plaintiffs. To recognize pri- vate duty of care to beekeeping industry and its economic inter- ests would conf lict with purpose of legislative scheme. HAA did not contain any provisions creat- ing obligation to consult indus- try. 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