Law Times

Law Times • September 29, 2014 Page 15 www.lawtimesnews.com that required two attendants several times per day. Child had no ability to communicate verbally and was able to exert partial control over neck, eyes and one leg. Child remained medically fragile and vulner- able. Mother and father were unable to agree as to where child should be transferred. Father sought order appointing him as guardian of person of child pending adjudication of guardianship application. Fa- ther sought order placing child in group residence on her dis- charge from hospital. Mother proposed to care for child from her home with assistance of family volunteers and paid per- sonal support workers. Report indicated almost all of rooms in mother's home were inade- quate for child's needs. Interim order granted. Mother's plan of care left too many unanswered questions, relying on volun- teers with no medical training and not providing for rehabili- tation activities. Mother's plan was twice as costly as father's. Father's plan was realistic one that could be completely ad- dressed within envelope of available benefits. Buckley v. Buckley (May. 21, 2014, Ont. S.C.J., Robert N. Beaudoin J., File No. 14-60848) 240 A.C.W.S. (3d) 764. ONTARIO CRIMINAL DECISIONS Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Constellation of facts provided ample grounds for accused's arrest Accused appealed conviction. Issue was constitutionality of arrest that took place at door to accused's apartment. Appeal dismissed. Despite some con- fusion in trial judge's terminol- ogy between grounds for de- tention and grounds for arrest, findings of fact by trial judge, including marijuana smoke, accused's suspicious conduct, and visible drug paraphernalia, provided ample grounds for ac- cused's arrest. Constellation of facts, viewed reasonably and cumulatively by someone with experience of officer in ques- tion, provided ample grounds for accused's arrest. As arrest was lawful and, therefore, not breach of s. 9 of Charter, sub- sequent conduct of police, al- though clearly improper, could not have impacted on admis- sibility of evidence in question. R. v. Meiz (Mar. 17, 2014, Ont. C.A., Doherty J.A., John Laskin J.A., and K. Feldman J.A., File No. CA C55769) 113 W.C.B. (2d) 406. ENFORCEMENT OF RIGHTS Inducements made to accused to get her to provide statement Application by Crown to admit two statements made by ac- cused to police. Accused was charged with second degree murder. Accused's first state- ment was made to one of two police officers who responded to 9-1-1 call at accused's build- ing. In parking garage officers found accused, witness who made 9-1-1 call and deceased who was not breathing. One officer had brief conversation with accused and asked her for her name and if she was from specific apartment. Accused provided her name and she said she was from that apart- ment. She also told officer that deceased attacked her and she defended herself. Officer testi- fied that accused was hysterical and distraught and he calmed her down, by telling her she was not in trouble and by plac- ing his hand on her shoulder to reassure her and he was able to obtain information from her. He also testified that accused was not suspect when he ques- tioned her. Second statement was lengthy statement that was videoed and audiotaped at po- lice station. Crown applied for ruling on voluntariness of first statement and statement made at station. It conceded that sec- ond half of statement made at station could not be proven to be voluntary and Crown did not seek to introduce it. Ac- cused claimed that entire state- ment at station was involun- tary and that both statements should be excluded on basis that accused's rights under Canadian Charter of Rights and Freedoms were infringed. Application allowed in part. First statement was admis- sible as it was given voluntarily. Her Charter rights were not breached when she gave that statement because she was not detained when she provided it. Statement taken at station was not proven to have been given voluntary and it was inadmis- sible. Inducements were also made to accused to get her to provide statement. Prior to in- terview accused was left in cold room with inadequate clothing for 10 hours before interview and she was given water and no food. At that interview accused was questioned in aggressive manner and she repeatedly told interviewing officers that she did not want to answer any questions and she had been ad- vised by counsel not to do so. Officers ignored her and they continued with interview. If conclusion on voluntariness was wrong, statement at station was still inadmissible because several of accused's Charter rights were violated and admis- sion of statement would bring administration of justice into disrepute. R. v. Dupuis (May. 2, 2014, Ont. S.C.J., M. Forestell J., File No. 13-40000614-0000) 113 W.C.B. (2d) 433. Release from Custody JUDICIAL INTERIM RELEASE Court did not have jurisdiction to consider extending existing release once verdict rendered Accused was found guilty of manslaughter. After verdict, Crown applied to have ac- cused's judicial interim release order vacated and to have him taken into custody pending his sentencing. Accused opposed application. Court did not be- lieve that it had jurisdiction to continue accused's release. Application allowed. Accused was charged with first degree murder and was granted release pursuant to s. 522 of Criminal Code. Effect of wording of s. 523(1) of Code was that release on charge of murder ended at completion of accused's trial, and there was no discretion in trial judge to extend that release pending sentencing, unlike sit- uation that existed for all other offences. There was no provi- sion in Criminal Code that contemplated application for bail being made for person con- victed of offence, as opposed to just being charged with offence, save for application for bail pending appeal. Court did not have jurisdiction under Crimi- nal Code to consider extend- ing existing release for accused once verdict was rendered and his trial was completed. R. v. Wright (May. 16, 2014, Ont. S.C.J., Nordheimer J., File No. Toronto 5-313/13) 113 W.C.B. (2d) 459. FEDERAL COURT Aboriginal Peoples CROWN RELATIONSHIP Not clear limitation period had begun as agreements still in force Plaintiffs commenced action against Canada for damages for f looding of reserve lands and loss of land and its use, as well as loss of hunting, fishing and harvesting rights. Flood was caused by building of dam for hydro. Canada, Ontario and Manitoba entered into cost sharing agreements for capital costs related to dam, latter of which added compensation to capital costs. Manitoba made its final payment under agree- ment in 1980. In response to ac- tion, Canada issued third party claim against Ontario and Manitoba. Motion by Mani- toba to be removed as third party on basis it had met obli- gations and been released from further liability and time had run out to add it. Motion dis- missed. Not clear Manitoba no longer had obligations under agreement and some compen- sation had already been treated as capital costs. Not clear any party's obligations had been discharged and not all losses to band had been settled. As agreements were still in force, it was not clear limitation period had even begun to run yet. No evidence Canada ever acqui- esced to Manitoba's refusal to accept liability or made rep- resentations it had been fully discharged. There was genuine issue for trial with respect to Manitoba's liability, and action was not clearly out of time or barred by estoppel or doctrine of laches. Southwind v. R. (Mar. 27, 2014, F.C., James W. O'Reilly J., File No. T-2579-91) 240 A.C.W.S. (3d) 525. SELF-GOVERNMENT Chief not provided with oppor- tunity to address concerns before his suspension was decided Application for judicial review of resolution adopted by Band Council of respondent First Nation on June 8, 2012, where- by it was decided that applicant chief was not to represent views of Band Council, that his pay and allowance be suspended, and that he be denied access to offices, equipment, e-mail and phones. Reason for sanc- tions was alleged to have been letter sent by Chief to Prime Minister and Minister of Ab- original Affairs and Northern Development Canada without the approval of Band Coun- cil. Letter highlighted, among other things, mishandling of money by Band Council. Ap- plication granted. Decision of Band Council to suspend chief and to strip him of his remuneration, his powers and access to his office until he accepted conditions imposed upon him was unreason- able and went beyond powers granted to Band Council by s. 84 of First Nation's Election Policy. While one may dis- agree with tone of his letter, it could not reasonably be said that chief did not perform his responsibilities and leadership by calling for police investi- gation. There were certainly enough credible allegations of wrongdoing to raise legitimate concerns. Band Council also breached procedural fairness by suspending chief. Chief was not provided with any mean- ingful opportunity to address concerns of Band Council be- fore his suspension was decid- ed. Band Council resolution suspending chief was quashed, and First Nation was ordered to pay chief remuneration and other benefits he should have been allowed for period be- tween June 11, 2012, and end of his term of elected office. Tsetta v. Band Council of the Yellowknives Dene First Nation (Apr. 29, 2014, F.C., Yves de Montigny J., File No. T-1922- 12) 240 A.C.W.S. (3d) 526. Admiralty JURISDICTION Common law public right of navi- gation was not unrestricted Tour boat operator had oper- ated from property governed by port authority until 2005. Operator ceased operations after that time due to restric- tions placed on tour boat op- erations by port authority in 2006. Operator unsuccessfully applied for permission to oper- ate from port authority's prop- erty in 2013. Operator brought application for judicial review. Application dismissed. Port authority had statutory au- thority to require operator to be licensed and to deny license to operator. Section 28(2)(a) of Canada Marine Act, clearly permitted port authority to engage in port activities relat- ing to shipping, navigation, and transportation of passen- gers. Sections 56 to 60 of Act allowed port authority to con- trol traffic in port. Section 61 of Act allowed port authority to take appropriate measures to maintain order and safety of persons and property in port. Good management of port re- quired that activities of tour operators be licensed. Operator could not expect authorization for any activity to be granted under s. 27 of Port Authorities Operations Regulations (Can.), as of right. Common law pub- lic right of navigation was not unrestricted. Operator failed to establish that it had been treat- ed unfairly. Adventure Tours Inc. v. St. John's Port Authority (May. 5, 2014, F.C., Cecily Y. Strickland J., File No. T-696-13) 240 A.C.W.S. (3d) 531. Police DISCIPLINE Delays in grievance process regrettable but not so oppres- sive as to taint proceedings Applicant sought judicial re- view of decision of Acting Commissioner of Royal Ca- nadian Mounted Police. Ap- plicant had been disciplined by his employer for taking money and CD out of purse in car he was searching. Decision in question denied applicant's Level II grievance with respect to his suspension without pay and benefits pending outcome of disciplinary proceedings. Applicant asserted that de- cision should be quashed as result of length of time that it took to order stoppage of his pay and benefits and inordi- nate delays in processing his grievance. Applicant claimed reasons offered by Acting Commissioner for dismissing his grievance were insufficient and that, in any event, decision was unreasonable. Application dismissed. While delays in grievance process were regret- table, they were not so oppres- sive as to taint proceedings and cause serious prejudice to applicant. Acting Commis- sioner's findings in that regard were not unreasonable. Acting Commissioner's conclusion that applicant's behaviour was "outrageous", warranting ad- ministrative suspension of his pay and benefits, was clearly explained, and was well within range of possible, acceptable outcomes which were defen- sible in light of facts and law. Camara v. Canada (May. 9, 2014, F.C., Anne L. Mactav- ish J., File No. T-394-13) 240 A.C.W.S. (3d) 749. LT CASELAW

• Cover