Law Times

Law Times • January 19, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Evidence CROSS-EXAMINATION Improper cross-examination had no bearing on outcome of voir dire Accused charged with pos- session of cocaine for purpose of trafficking and possession of proceeds of crime. Defence counsel applied to exclude evi- dence pursuant to s. 24 of Cana- dian Charter of Rights and Free- doms. Counsel asked one police witness on voir dire to comment on veracity of other officers. Trial judge excluded evidence seized from accused for viola- tions of his Charter rights and acquitted him. Court of Appeal allowed Crown's appeal on ba- sis that defence counsel's cross- examination was improper. Appeal allowed and acquittal restored. Improper cross-exam- ination had no bearing on out- come of voir dire. R. v. Mian (Sep. 12, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abel- la J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35132) Decision at 104 W.C.B. (2d) 276 was reversed. 116 W.C.B. (2d) 334. Sentence PREVENTIVE DETENTION Robbery with threats of violence against person was serious personal injury offence Accused convicted of robbery. Accused robbed drugstore by saying that he had gun. No evi- dence that accused actually had gun or used any force. Crown applied for dangerous offender assessment. Trial judge dis- missed application on basis that offence was not serious personal injury offence. Court of Ap- peal dismissed Crown's appeal. Appeal allowed. Definition of "violence" in s. 752 incorpo- rates harm caused, attempted, or threatened. Robbery with threats of violence against per- son was serious personal injury offence within meaning of sec- tion. R. v. Steele (Oct. 9, 2014, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Mol- daver J., Karakatsanis J., and Wagner J., File No. 35364) Deci- sion at 105 W.C.B. (2d) 641 was reversed. 116 W.C.B. (2d) 427. FEDERAL COURT OF APPEAL Admiralty ARREST Plaintiffs could not arrest more than one ship At marine terminal facility owned by plaintiffs, defendant's vessel struck and damaged part of trestle that led from shore to berth. Berth became unstable until repairs were affected and parts were replaced. Plaintiffs commenced action in Supreme Court of British Columbia and arrested vessel. Parties negoti- ated release of vessel from ar- rest. Defendant issued letter of understanding (LOU) of US $26 million and in consideration of LOU plaintiffs were to agree to release vessel from arrest and to refrain from arresting any other ship defendant owned. Plaintiffs decided that clause in LOU that prevented them from arresting sister ship of vessel was not acceptable. British Colum- bia Supreme Court judge found that there was legally binding agreement plaintiffs entered into pursuant to which they agreed to waive right to arrest sister ships in consideration of security being provided by de- fendant. Judge found there was no basis to set aside agreement on ground of mistake. Judge found that, pursuant to s. 43(8) of Federal Courts Act (Can.), plaintiffs could not arrest both vessel and sister ship. Plaintiffs appealed. Appeal dismissed. Judge correctly concluded that there was no mistake that could vitiate agreement. Plaintiffs knew of uncertainties of ar- resting more than one ship and agreed to terms of LOU fully aware of divergent opinions on issue. Pursuant to Act, plaintiffs could not arrest more than one ship. Plaintiffs could proceed either under s. 43(2) of Act to secure arrest of offending vessel or under s. 43(8) of Act to secure arrest of sister ship. Plaintiffs elected to proceed under s. 43(2) of Act and were barred from seeking arrest under s. 43(8) of Act. By enacting s. 43(8) of Act, Parliament intended to confer on plaintiffs in Canada right to arrest sister ship in lieu of of- fending ship. Parliament did not intend for Federal Court to ex- ercise jurisdiction in rem under both s. 43(2) and (8) of Act for same claim. Westshore Terminals Limited Partnership v. Leo Ocean S.A. (Oct. 15, 2014, F.C.A., Marc Nadon J.A., Eleanor R. Dawson J.A., and Johanne Trudel J.A., File No. A-101-14) Decision at 238 A.C.W.S. (3d) 281 was af- firmed. 245 A.C.W.S. (3d) 496. Civil Procedure PLEADINGS No requirement that affirmation be made on any holy book Plaintiff applied for judicial review of Canadian Human Rights Commission's decision not to hear his complaint. Plain- tiff attempted to file evidence with unsworn affidavits. Plain- tiff was Mennonite and refused to swear affidavit on Bible that was provided by court's regis- try in Winnipeg because it was not "undefiled" Bible. Plaintiff was ordered to either obtain access to "undefiled" Bible and swear on it or to make solemn affirmation to affirm his affi- davit. Application for judicial review was dismissed. Plaintiff brought action against Crown seeking order declaring Federal Court Registry in Winnipeg in contempt of court, order direct- ing court to hear application and interim order providing means of affirming or swear- ing his affidavit evidence that did not offend his conscience. Defendant brought motion to strike out plaintiff 's statement of claim. Prothonotary ordered plaintiff 's statement of claim to be struck out on basis that it disclosed no reasonable cause of action and was abuse of process. Plaintiff appealed. Appeal was dismissed. Plaintiff appealed. Appeal dismissed. Plaintiff mis- understood effect of "affirma- tion" and entire case was based on misunderstanding. Pursu- ant to R. 80(1) of Federal Courts Rules (Can.), affidavits were to comply with Form 80A, which indicated that affidavit may be sworn or affirmed. There was no requirement that affirma- tion be made on any holy book. Word "affirmation" referred to method of completing affidavit that had no religious connota- tion and plaintiff had no basis on which to refuse to provide necessary court documentation in support of action he com- menced. Motions judge applied correct principles of law and clearly understood factual back- ground in concluding that state- ment of claim disclosed no rea- sonable cause of action. Leave to appeal to Supreme Court of Canada was denied. Klippenstein v. R. (Sep. 30, 2014, F.C.A., Eleanor R. Dawson Act- ing C.J., Karen Sharlow J.A., and David G. Near J.A., File No. A-135-14) Decision at 238 A.C.W.S. (3d) 90 was affirmed. 245 A.C.W.S. (3d) 522. FEDERAL COURT Administrative Law NATURAL JUSTICE Switching of test once condition precedent met yielded breach of procedural fairness Applicant was permanent resi- dent. Applicant was abroad for vast majority of time on exchange program in Germa- ny as part of her degree from university. Remainder of time abroad was spent visiting fam- ily in China. Citizenship Judge determined applicant did not accumulate requisite number of days of residence required and denied applicant's citizen- ship application. Applicant ap- pealed and matter was sent back for redetermination. Second judge advised applicant that if he found she was in Canada for 938 days she would receive positive decision. Judge found applicant was not in Canada for 1095 days. According to written decision and evidence applicant spent 938 days in Canada. Judge declined to make favourable recommendation for discre- tionary grant of citizenship. Ap- plicant sought judicial review. Application granted. Switching of test once condition precedent was met resulted in breach of applicant's legitimate expecta- tion and yielded breach of pro- cedural fairness. Applying dif- fered citizenship test than that which was promised at hearing, when such decision was discre- tionary would not reach high threshold of bad faith. Applicant understood which test would be applied and governed herself ac- cordingly. Qin v. Canada (Minister of 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 BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT 8JUINPSFUIBOQBHFWJFXTBOEVOJRVF WJTJUPSTNPOUIMZDBOBEJBOMBXMJTUDPNDBQUVSFTZPVSNBSLFU FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. 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